November 01, 2000

By: Wyndi Marie Anderson, Point (SC), Winter 2000

In your last issue you ran an excellent story about the policy in South Carolina of using the criminal justice system to punish women who are pregnant and using drugs ["Body Politics," Fall 1999]. The story ends pointing to the possibility that the case will be used to undermine the right to choose to have an abortion and to punish women for a range of behaviors beyond drug use. Unfortunately, we now know those things are actually happening in South Carolina -- and that women are being deterred from health care as a result.

For example, since Whitner ( the decision finding that viable fetuses are persons and anything a pregnant woman does to jeopardize her pregnancy can be punished as child abuse ):

A pregnant woman in South Carolina has been arrested because she was pregnant and used alcohol.

When a thirteen-year-old girl experienced a stillbirth her parents were arrested. One charge was for unlawful conduct to a child -- because they had allegedly "failed to get proper care for the fetus."

A woman who suffered a miscarriage was arrested and charged with homicide by child abuse. The prosecutor who admitted there was no evidence of drug use nevertheless insisted that the miscarriage was a "crime" that the woman had to take responsibility for.

Since South Carolina has declared that unborn children may be "protected" through the state's criminal laws, some programs have reported a dramatic drop in the number of women seeking drug treatment. In addition, the infant mortality in the state has increased for the first time in a decade, and the state has also seen a 20 percent increase in abandoned babies, suggesting that women fearful of criminal punishment are leaving their babies rather than risk arrest. While we can't be sure the punitive law caused either of these increases, it does raise serious questions about its effect on children and women's health.

Moreover, as the article suggested, the decision is being used in the effort to outlaw abortion. Having won recognition of fetal rights and personhood, the Attorney General made clear that he would use the decision as a basis for limiting abortion. In a written opinion addressing the legality of the so called "partial-birth abortion procedure," he argued that Whitner stood for the broad proposition that "a viable unborn fetus is a 'person' under South Carolina civil and criminal law." Specifically, he took the position that "Whitner must now be construed as part of South Carolina's abortion statutes." He concluded that Whitner, along with the other precedent cited in that case, made a particular form of abortion -- so called partial birth abortion -- murder. The Attorney General publicly announced that he "would prosecute any doctor who performs a 'partial birth' abortion on charges of homicide by child abuse."

The AG went even further. Following a natural progression, his office argued that all post-viability abortions, regardless of the method or reason, could be prosecuted as murder, and that those involved in the procedure could receive the death penalty. Thus, at nearly the same time that Dr. Barnett Slepian was murdered in cold blood by an anti-abortion activist, the S.C. Attorney General's Office was asserting that it had a legal basis for accomplishing the same result.

As a result of this law in South Carolina, women who want to have children are being deterred from prenatal care and drug treatment, and women who want to have a safe, legal abortion are in danger of losing that right. This policy is having a detrimental affect on all of us, and it is time to stand together and oppose South Carolina's unique and destructive law.

Sincerely, Wyndi Marie Anderson, S.C. Advocates for Pregnant Women, Charleston